EXHIBIT 4.2.1
FORM OF AMENDED AND RESTATED CERTIFICATE
OF FORMATION OF CONSUMERS FUNDING LLC
AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
CONSUMERS FUNDING LLC
AMENDED AND RESTATED CERTIFICATE OF FORMATION, dated ,
2001 (as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, this "Certificate of Formation"),
of CONSUMERS FUNDING LLC, a Delaware limited liability company (the
"Company"), having its principal office at Suite M-1029, 212 W. Michigan
Avenue, Jackson, MI 49201.
SECTION 1. Capitalized Terms. Unless otherwise defined
herein, all capitalized terms shall have the meanings ascribed thereto in
the Amended and Restated Limited Liability Company Agreement of the
Company, dated as of , 2001 (the "Agreement"), as the same may be amended
from time to time.
SECTION 2. Name. The name of the limited liability
company is Consumers Funding LLC.
SECTION 3. Address. The address of its registered office
in the State of Delaware is 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such address is
The Corporation Trust Company.
SECTION 4. Term. The term of the Company shall continue
until the Company is dissolved and liquidated in accordance with Delaware
Limited Liability Company Act, chapter 18, title 6, sections 18-101 through
18-1109 of the Delaware Code (as amended, the "Act"), subject to Sections
6.03 and 9.05 of the Agreement. The existence of the Company as a separate
legal entity shall continue until the cancellation of this Certificate of
Formation in accordance with the Act.
SECTION 5. Independent Managers.
(a) The Company shall have at all times at least two
individuals who are each Independent Managers. The Independent Managers may
not delegate their duties, authorities or responsibilities hereunder or
under the Agreement. If any Independent Manager resigns, dies or becomes
incapacitated, or such position is otherwise vacant, no action requiring
the unanimous affirmative vote of the Managers shall be taken until a
successor Independent Manager is appointed by the Member and qualifies and
approves such action.
(b) Notwithstanding any other provision of this
Certificate of Formation or of the Agreement or any provision of law that
otherwise so empowers the Company, the Member, any Manager or any other
Person, the Company shall not, and neither the Member nor any Manager nor
any other Person on behalf of the Company shall, without the prior
unanimous consent of the Managers, including each of the Independent
Managers, do any of the following: (i) engage in any business or activity
other than those set forth in Article II of the Agreement; (ii) incur any
indebtedness, other than the Bonds, obligations under agreements with third
party credit enhancers and swap or hedge agreement counterparties relating
to any Series of Bonds and ordinary course expenses as set forth in Article
II of the Agreement, or assume or guarantee any indebtedness of any other
entity; (iii) make a general assignment for the benefit of creditors; (iv)
file a petition commencing a voluntary bankruptcy case; (v) file a petition
or answer seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
regulation; (vi) file an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
regulation, or the entry of any order appointing a trustee, liquidator or
receiver of it or of its assets or any substantial portion thereof; (vii)
seek, consent to or acquiesce in the appointment of a trustee, receiver or
liquidator of it or of all or any substantial part of its assets; (viii)
consolidate or merge with or into any other entity or convey or transfer
substantially all of its properties and assets substantially as an entirety
to any entity, or (ix) amend the Agreement or this Certificate of Formation
or take action in furtherance of any such action. With regard to any action
contemplated by the preceding sentence, or with regard to any action taken
or determination made at any time when the Company is insolvent, each
Manager will, to the fullest extent permitted by law, owe its primary
fiduciary duty to the Company (including the creditors of the Company).
SECTION 6. Special Members. Upon the occurrence of any
event that causes the Member to cease to be a member of the Company, each
person acting as an Independent Manager pursuant to Section 5 hereof shall,
without any action of any Person and simultaneously with the Member ceasing
to be a member of the Company, automatically be admitted to the Company as
a Special Member and shall continue the Company without dissolution. No
Special Member may resign from the Company or transfer its rights as a
Special Member unless (i) a successor Special Member has been admitted to
the Company as a Special Member by executing a counterpart to the
Agreement, and (ii) such successor has also accepted its appointment as
Independent Manager, provided, however, the Special Members shall
automatically cease to be members of the Company upon the admission to the
Company of a substitute Member. Each Special Member shall be a member of
the Company that has no interest in the profits, losses and capital of the
Company and has no right to receive any distributions of Company assets.
Pursuant to Section 18-301 of the Act, a Special Member shall not be
required to make any capital contributions to the Company and shall not
receive a limited liability company interest in the Company. A Special
Member, in its capacity as Special Member, may not bind the Company. Except
as required by any mandatory provision of the Act, each Special Member, in
its capacity as Special Member, shall have no right to vote on, approve or
otherwise consent to any action by, or matter relating to, the Company,
including, without limitation, the merger, consolidation or conversion of
the Company. In order to implement the admission to the Company of each
Special Member pursuant to this Section, each person acting as an
Independent Manager pursuant to Section 5 hereof shall execute a
counterpart to the Agreement. Prior to its admission to the Company as
Special Member, each person acting as an Independent Manager pursuant to
Section 5 hereof shall not be a member of the Company.
SECTION 7. Rights on Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or
winding up of the Company, the Member shall be entitled to all remaining
assets of the Company available for distribution to the Member after
payment of all liabilities, debts and obligations of the Company to
creditors, as set forth in Section 18-804 of the Act.
(b) Neither the sale of all or substantially all of the
property or business of the Company, nor the merger or consolidation of the
Company into or with another Company or other entity, shall be deemed to be
a dissolution, liquidation or winding up, voluntary or involuntary, for the
purpose of this Section 7.
(c) The commencement of a bankruptcy, insolvency,
receivership or other similar proceeding by or against the Company or the
Member shall not result in the dissolution of the Company or in the
cessation of the interest of the Member in the Company. The withdrawal or
resignation of the Member or the dissolution of the Member shall not, by
itself, constitute a dissolution of the Company.
(d) Upon the occurrence of any event that causes the last
remaining member of the Company to cease to be a member of the Company, to
the fullest extent permitted by law, the personal representative of such
member is hereby authorized to, and shall, within 90 days after the
occurrence of the event that terminated the continued membership of such
member in the Company, agree in writing (i) to continue the Company and
(ii) to the admission of the personal representative or its nominee or
designee, as the case may be, as a substitute member of the Company,
effective as of the occurrence of the event that terminated the continued
membership of the last remaining member of the Company in the Company.
(e) Notwithstanding any other provision of this
Certificate of Formation or of the Agreement, the bankruptcy of the Member
or any Special Member shall not cause the Member or Special Member,
respectively, to cease to be a member of the Company, and upon the
occurrence of such an event the business of the Company shall continue
without dissolution.
SECTION 8. No Bankruptcy Petition; No Dissolution.
(a) The Member hereby covenants and agrees that it shall
not, prior to the date which is one year and one day after the termination
of the Indenture and the payment in full of the Transition Bonds, any other
amounts owed under the Indenture, including, without limitation, any
amounts owed to third-party credit enhancers, and any amounts owed under
any swap or hedge agreement, acquiesce, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Issuer under
any federal or State bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer,
provided, however, that nothing in this Section 8 shall constitute a waiver
of any right to indemnification, reimbursement or other payment from the
Company pursuant to the Agreement.
(b) To the fullest extent permitted by law, the Member
and each Manager and Special Member hereby covenants and agrees (or shall
be deemed to have hereby covenanted and agreed) that, until all of the
Bonds and all amounts owed under the Indenture have been paid in full, the
Member and such Manager will not consent to, or make application for, or
institute or maintain any action for, the dissolution of the Company under
Section 18-801 or 18-802 of the Act or otherwise.
(c) In the event that the Member, any Special Member or
any Manager takes action in violation of this Section 8, the Company shall
file an answer with the court or otherwise properly contest the taking of
such action and raise the defense that the Member, the Manager or the
Special Member, as the case may be, has agreed in writing not to take such
action and should be estopped and precluded therefrom and such other
defenses, if any, as its counsel advises that it may assert.
(d) The provisions of this Section 8 shall survive the
termination of the Agreement and the resignation, withdrawal or removal of
the Member or any Manager or the Special Member.
SECTION 9. Conflict. In the event of any conflict or
inconsistency between the provisions of this Certificate of Formation and
of the Agreement, the provisions of this Certificate of Formation shall
govern.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Amended and Restated Certificate of Formation of Consumers
Funding LLC this th day of _____, 2001.
CONSUMERS FUNDING LLC
By: Consumers Energy Company,
as sole Member
By:
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